Com. v. Fischer, 721 A.
2d 1111 (1998)
721 A.2d 1111
Superior Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee,
v.
Kurt FISCHER, Appellant.
Argued Sept. 2, 1998.
| Const.Amend. 6.
Filed Dec. 7, 1998.
Synopsis
Defendant was convicted in the Court of Common
Pleas, Northampton County, Criminal Division, No.
1464-1996, Panella, J., of involuntary deviate sexual
intercourse (IDSI) and aggravated indecent assault, in
connection with incident that occurred in college campus
dormitory. Defendant appealed. The Superior Court, No.
133 Philadelphia 1998, Beck, J., held that defendant was
not entitled to mistake of fact instruction.
Affirmed.
Del Sole, J., concurred in result.
West Headnotes (5)
[1] Criminal Law
Deficient Representation and Prejudice
in General
To establish ineffective assistance of counsel,
defendant must establish: (1) an underlying
issue of arguable merit; (2) the absence of a
reasonable strategy on the part of counsel in
acting or failing to act; and (3) prejudice as a
result of counsel's action or inaction.
U.S.C.A. Const.Amend. 6.
Cases that cite this headnote
[2] Criminal Law
Presumptions and Burden of Proof
in General
Superior Court presumes that counsel is
effective and places the burden on
defendant
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
to prove otherwise. U.S.C.A.
Const.Amend. 6.
Cases that cite this headnote
[3] Criminal Law
Particular Cases and Issues
Counsel cannot be deemed ineffective for
failing to pursue a baseless claim. U.S.C.A.
1 Cases that cite this headnote
[4] Criminal Law
Adequacy of Representation
Criminal Law
Particular Cases and Issues
Quality of counsel's stewardship is based on
the state of the law as it existed at time of
trial; counsel is not ineffective if he fails to
predict future developments or changes in the
law.
U.S.C.A. Const.Amend. 6.
1 Cases that cite this headnote
[5] Criminal Law
Defenses in General
Defendant was not entitled to mistake
of fact instruction, in prosecution for
involuntary deviate sexual intercourse (IDSI)
and aggravated indecent assault arising from
college dormitory incident in which victim
alleged physical force in a sexual assault and
defendant claimed that he reasonably
believed he had consent. 18 Pa.C.S.A. §§
304, 3101.
5 Cases that cite this headnote
Attorneys and Law Firms
*1112 Michael M. Mustokoff, Huntington Valley, for
appellant.
Before DEL SOLE, SCHILLER and BECK, JJ.
1
Com. v. Fischer, 721 A.2d 1111 (1998)
Opinion
BECK, J.:
This case prompts our consideration of the law with
respect to forcible compulsion and consent in sexual
assault cases. After a careful review of the record and an
in-depth analysis of the issue at hand, we affirm.
Appellant, an eighteen year-old college freshman, was
charged with involuntary deviate sexual intercourse
(IDSI), aggravated indecent assault and related
offenses in connection with an incident that occurred
in a Lafayette College campus dormitory. The victim
was another freshman student appellant met at school.
At trial, both the victim and appellant testified that a
couple of hours prior to the incident at issue, the two
went to appellant's dorm room and engaged in intimate
contact. The victim testified that the couple's conduct was
limited to kissing and fondling. Appellant, on the other
hand, testified that during this initial encounter, he and
the victim engaged in “rough sex” which culminated in
the victim performing fellatio on him. According to
appellant, the victim acted aggressively at this first
rendezvous by holding appellant's arms above his head,
biting his chest, stating “You know you want me,” and
initiating oral sex.
After the encounter, the students separated and went to
the dining hall with their respective friends. They met up
again later and once more found themselves in appellant's
dorm room. While their accounts of what occurred at
the first meeting contained significant differences, their
versions of events at the second meeting were grossly
divergent. The victim testified that appellant locked the
door, pushed her onto the bed, straddled her, held her
wrists above her head and forced his penis into her
mouth. She struggled with appellant throughout the entire
encounter and warned him that “someone would look for
her” and “someone would find out.” She also told him
that she was scheduled to be at a mandatory seminar and
repeatedly stated that she did not want to engage in sex,
but her pleas went unheeded.
According to the victim, appellant forced his hands
inside a hole in her jeans and penetrated her with his
fingers. He then placed his penis inside the torn jeans,The Commonwealth offered physical evidence of sperm
removed it and ejaculated on her face, hair and sweater.found on the victim's sweater. Medical personnel testified
Thereafter, he turned her over onto her stomach, pulled to treating the victim on the night in question. Many of
the
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down her underpants and attempted to penetrate her
anally. Throughout the incident, appellant made
various statements to the victim, including “I know
you want it,” “I know you want my dick in your
mouth” and “Nobody will know *1113 where you
are.” When the victim attempted to leave, appellant
blocked her path. Only after striking him in the
groin with her knee was the victim able to escape.
Appellant characterized the second meeting in a far
different light. He stated that as he led the victim into his
room, she told him it would have to be “a quick one.” As
a result, appellant figured that their sexual liaison would
be brief. Thereafter, according to appellant, he began
to engage in the same type of behavior the victim had
exhibited in their previous encounter. Appellant admitted
that he held the young woman's arms above her head,
straddled her and placed his penis at her mouth. He
testified that at that point he told her “I know you want
my dick in your mouth.” When she replied “no,”
appellant answered “No means yes.” After another verbal
exchange that included the victim's statement that she
had to leave, appellant again insisted that “she wanted it.”
This time she answered “No, I honestly don't.” Upon
hearing this, appellant no longer sought to engage in oral
sex and removed himself from her body. However, as the
two lay side by side on the bed, they continued to kiss
and fondle one another.
Appellant admitted to touching the victim's genitalia
and to placing his penis inside the hole in her jeans.
According to appellant, the victim enjoyed the contact
and responded positively to his actions. At some point,
however, she stood up and informed appellant that she
had to leave. When appellant again attempted to touch
her, this time on the thigh, she told him she was
“getting pissed.” Before appellant could “rearrange
himself,” so that he could walk the victim to her class,
she abruptly left the room.
At trial, both sides presented evidence to support their
positions. Appellant's college friends testified that after
the first encounter, but before the second, appellant
showed them bite marks on his chest that he had received
from the victim during the first encounter. Numerous
character witnesses testified on appellant's behalf.
2
Com. v. Fischer, 721 A.2d 1111 (1998)
victim's friends and classmates described her as nervous,
shaken and upset after the incident.
Defense counsel argued throughout the trial and in
closing that appellant, relying on his previous
encounter with the victim, did not believe his actions
were taken without her consent. Presenting appellant as
sexually inexperienced, counsel argued that his client
believed the victim was a willing participant during their
intimate encounters. In light of his limited experience and
the victim's initially aggressive behavior, argued
counsel, appellant's beliefs were reasonable. Further, the
victim's conduct throughout the second encounter, as
testified to by appellant, would not make appellant's
actions “forcible” since it appeared that the victim was
enjoying the encounter. Finally, as soon as appellant
realized that the victim truly did not wish to engage in
oral sex a second time, appellant stopped seeking
same. As a result, appellant's actions could not be
deemed forcible compulsion.
The jury returned a verdict of guilty on virtually all
1
counts. Appellant was sentenced to two to five years in
prison. On direct appeal, he retained new counsel who
has raised a single issue of ineffectiveness before this
court. He argues that trial counsel provided ineffective
assistance in failing to request a jury charge on the
defense of mistake of fact. Specifically, appellant claims
that counsel should have asked the court to instruct the
jurors that if they found appellant reasonably, though
mistakenly, believed that the victim was consenting to his
sexual advances, they could find him not guilty.
[1] [2] The standard of review for ineffectiveness
challenges is clear. Appellant must establish: 1) an
underlying issue of arguable merit; 2) the absence of a
reasonable strategy on the part of counsel in acting or
failing to act; and 3) prejudice as a result of counsel's
action or inaction. Commonwealth v. Johnson, 527 Pa. 118,
588 A.2d 1303, 1305 (1991). In all instances we presume
that *1114 counsel is effective and place the burden on
appellant to prove otherwise. Commonwealth v. Williams,
524 Pa. 218, 570 A.2d 75, 81 (1990).
[3] [4] Our initial inquiry is whether counsel
would have been successful had he requested a
mistake of fact instruction. Counsel cannot be
deemed ineffective for failing to pursue a baseless
claim. Commonwealth v. Rollins, 525 Pa. 335, 580
A.2d 744 (1990). Further, the quality of counsel's
stewardship is based on the state of the
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
law as it existed at time of trial; counsel is not ineffective
if he fails to predict future developments or changes in
the law. Commonwealth v. Todaro, 549 Pa. 545, 701
A.2d 1343,
1346 (1997).
The Commonwealth relies on two bases for dispensing
with appellant's claims. It first argues that appellant's
claim does not warrant consideration because he
testified that the victim did not perform oral sex on
him at the second encounter. The Commonwealth
insists that appellant's testimony prevents him from
claiming a mistake of fact regarding commission of the
crime. The record, however, establishes otherwise.
Throughout the trial, counsel clearly relied on appellant's
previous contact with the victim to support his claim that
appellant reasonably believed the victim consented to his
advances. While on the stand, appellant admitted that he
placed his penis on the victim's mouth. He testified: “the
head of my penis went halfway in, but then she closed
her mouth and turned to the side.” Because the crime of
IDSI is complete at the point of “penetration, however
slight,” appellant clearly admitted that the physical
element/requirement of the crime was met. 18 Pa.C.S.A.
§ 3101. The Commonwealth's first argument, therefore, is
unavailing.
The Commonwealth's second line of attack is its reliance
on an opinion by a panel of this court. Commonwealth v.
Williams, 294 Pa.Super. 93, 439 A.2d 765
(Pa.Super.1982), concerned the rape and assault of a
Temple University student. The facts established that the
victim accepted a ride from the appellant on a snowy
evening in Philadelphia. Instead of taking the young
woman to the bus station, appellant drove her to a dark
area, threatened to kill her and informed her that he
wanted sex. The victim told Williams to “go ahead”
because she did not wish to be hurt.
After his conviction and sentence, appellant filed a
direct appeal and argued, among other things, that the
trial court erred in refusing to instruct the jury “that if
the defendant reasonably believed that the prosecutrix
had consented to his sexual advances that this would
constitute a defense to the rape and involuntary deviate
sexual intercourse charge.” Id. 439 A.2d at 767. This
court rejected Williams's claim and held:
3
Com. v. Fischer, 721 A.2d 1111 (1998)

accompanied by conspicuous injury, a rape case is often

In so refusing the proffered charge

the court acted correctly. The
charge requested by the defendant is
not now and has never been the law
of Pennsylvania. When one
individual uses force or the threat of
force to have sexual relations with a
person not his spouse and without
the person's consent he has
committed the crime of rape. If the
element of the defendant's belief as
to the victim's state of mind is to be
established as a defense to the
crime of rape then it should be done
by our legislature which has the
power to define crimes and
offenses. We refuse to create such a
defense.

Id. (emphasis supplied.) The Commonwealth insists that

under Williams, appellant was not entitled to the
instruction he now claims trial counsel should have
requested.

In response, appellant makes two arguments. First,

he argues that the “stranger rape” facts of Williams
were far different from those of this case, making the
case inapplicable.
Second, he maintains that the law with respect to
rape and sexual assault has changed significantly
over the last decade, along with our understanding of
the crime and its permutations, making a mistake of
fact instruction in a date rape case a necessity for a
fair trial.

In support of his argument, appellant draws our attention

to many sources, including the evolution of sexual assault
case law in this Commonwealth, recent amendments to
our sexual offenses statutes, commentary accompanying
the Pennsylvania Standard Jury Instructions, law review
articles and treatment of the issue in other jurisdictions.
Because *1115 we find appellant's arguments thoughtful
and compelling, we will address them here.

The issues of consent and forcible compulsion raised in

sexual assault prosecutions have always been complex.
Unless the incident is witnessed by a third party, or is

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Com. v. Fischer, 721 A.2d 1111 (1998)

reduced to a credibility battle between the complainant psychologically and emotionally

and the defendant. Our laws have sought continually mature, and less sophisticated than
to protect victims of sexual assault, and in the process, the adult, instructs the child to
have undergone significant change. Although the rape
and IDSI laws have always required the element of
“forcible compulsion,” that term was not initially
defined. The definition of that term and its relation to
the concept of consent have been the frequent topic of
2
discussion among lawmakers, courts and scholars.

Not long after Williams was decided, our supreme

court published Commonwealth v. Rhodes, 510 Pa.
537, 510 A.2d 1217 (1986). In that case, a twenty-
year-old man was accused of raping an eight-year-old
girl. The evidence established that the appellant took
the victim, whom he knew, to an abandoned building
and sexually assaulted her. The child complied with
all of the appellant's instructions until she felt pain,
whereupon she asked him to stop. Medical tests
showed the presence of semen in the child's vaginal and
rectal areas, as well as a “rectovaginal fissure (tear).” A
panel of this court reversed Rhodes's rape conviction
based on insufficient evidence. The panel held that
while the crime of statutory rape clearly was
established given the victim's age, there was no
evidence of the forcible compulsion necessary for the
rape conviction.

Our supreme court disagreed. Noting that sexual assault

crimes present “perplexing, controversial and
emotionally charged problems for the criminal justice
system,” the court borrowed the language of Williams
and stated that “the degree of force required to
constitute rape [or IDSI] is relative and depends upon
the facts and particular circumstances of the case.” Id.
at 554-56, 510 A.2d at 1226. Defining forcible
compulsion as including “not only physical force or
violence but also moral, psychological or intellectual
force,” the court held that forcible compulsion was
established.

There is an element of forcible

compulsion, or threat of forcible
compulsion that would prevent
resistance by a person of
reasonable resolution, inherent in
the situation in which an adult
who is with a child who is
younger, smaller, less

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Com. v. Fischer, 721 A.2d 1111 (1998)
submit to the performance of
sexual acts. This is especially
so where the child knows and
trusts the adult. In such cases,
forcible compulsion or the threat
of forcible compulsion derives from
the respective capacities of the child
and the adult sufficient to induce
the child to submit to the wishes
of the adult (“prevent resistance”),
without the use of physical force
or violence or the explicit threat of
physical force or violence.
Id. at 556-58, 510 A.2d at 1227.
The Rhodes court's inclusion of types of forcible
compulsion other than physical was a significant change
in the law. Of course, defining those new types was not
an easy task. In Commonwealth v. Mlinarich, 518 Pa.
247, 542 A.2d 1335 (1988), our supreme court again
faced the issue of what constitutes forcible compulsion
necessary for a rape conviction. In that case, the appellant
was charged with raping a fourteen-year-old girl, his
former neighbor who had been released to his wife's
custody. The child was no longer living with her parents
because she was involved in a theft and had spent a
period of time in a juvenile detention center. When the
appellant instructed the girl to disrobe, she refused. He
responded by *1116 threatening to send her back to the
detention home if she did not comply. The victim
acquiesced and on several occasions thereafter, the
appellant engaged in vaginal and oral intercourse with
her.
After convictions on counts of rape, IDSI, assault and
related charges, the appellant came before this court. The
en banc court ultimately ruled, in a five to four majority,
that the rape and attempted rape charges must be reversed
for lack of proof of forcible compulsion.
Upon review, the supreme court was evenly divided and
so the reversal by this court was sustained. The supreme
court's opinion in support of affirmance recognized that
physical violence was not the only manner in which
forcible compulsion could be accomplished, however it
also stated that “forcible compulsion was [not] intended
by the General Assembly, in this context, to be extended
to embrace appeals to the intellect or the morals of
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
the victim.” Id. at 252-53, 542 A.2d at 1338. The court
reasoned:
Certainly psychological coercion
can be applied with such intensity
that it may overpower the will to
resist as effectively as physical
force. See e.g., Commonwealth v.
Rhodes, 510 Pa. 537, 510 A.2d
1217 (1986).
The purpose of the term was to
distinguish between assault upon
the will and the forcing of the
victim to make a choice regardless
how repugnant. Certainly difficult
choices have a coercive effect but
the result is the product of the
reason, albeit unpleasant and
reluctantly made. The fact cannot
be escaped that the victim has
made the choice and the act is not
involuntary.
Id. at 260-62, 542 A.2d at 1342.
In his opinion in support of reversal, Justice Larsen
opined that under Rhodes, the element of forcible
compulsion was met. He further implored the legislature
to correct what he characterized as a “misreading of its
intention.” Id. at 273-75, 542 A.2d at 1349.
A correction by the legislature did not occur immediately
after Mlinarich or even shortly thereafter. Indeed, it was
not until the supreme court's decision in Commonwealth
v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994), that
the legislature amended the law with respect to sexual
3
assaults. Berkowitz, like the case before us, involved
an incident between two young college students in a
dormitory room. The complainant testified that she
entered the appellant's room hoping to find his roommate.
She stayed in the room at the appellant's request. At
some point, the appellant moved toward the complainant,
touched her breasts and attempted to put his penis in her
mouth. He then removed her pants and undergarments
and penetrated her vagina with his penis. Throughout the
encounter, the complainant repeatedly told the appellant
“no,” but she made no attempt to leave even though she
could have done so as the appellant was not restraining
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Com. v. Fischer, 721 A.2d 1111 (1998)

her in any manner.

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Com. v. Fischer, 721 A.2d 1111 (1998)
Our supreme court considered the facts set out above
and concluded that the element of forcible compulsion
was not established. While recognizing that the
complainant said “no” throughout the incident, the
court stated that the legislature intended the term
forcible compulsion to mean “something more than a
lack of consent.” Id. at 150-51, 641 A.2d at 1165.
Berkowitz's rape conviction was reversed.
Less than one year after the Berkowitz decision, the
legislature amended the sexual assault law by adding a
definition for forcible compulsion. The language of the
amendment closely followed that used by the Rhodes
court:
“Forcible Compulsion.” Compulsion by use of
physical, intellectual, moral, emotional or
psychological force, either express or implied. The
term includes, but is not limited to, compulsion
resulting in another person's death, whether the death
occurred *1117 before, during or after sexual
intercourse.
18 Pa.C.S.A. § 3101.
It is this broader definition, argues appellant in this
case, that prompts the necessity for a mistake of fact
jury instruction in cases where such a defense is
raised. According to appellant:
The language of the present statute
inextricably links the issues of
consent with mens rea. To ask a
jury to consider whether the
defendant used “intellectual or
moral” force, while denying the
instruction as to how to consider
the defendant's mental state at the
time of alleged encounter is patently
unfair to the accused.
Appellant's Brief at 24.
Appellant's argument is bolstered by the fact that the
concept of “mistake of fact” has long been a fixture in the
criminal law. The concept is codified in Pennsylvania
and provides:
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
Ignorance or mistake as to a matter of fact, for which
there is reasonable explanation or excuse, is a defense
if:
(1) the ignorance or mistake negatives the intent,
knowledge, belief, recklessness, or negligence
required to establish a material element of the
offense; or
(2) the law provides that the state of mind
established by such ignorance or mistake
constitutes a defense
18 Pa.C.S.A. § 304.
The notion that one charged with sexual assault may
defend by claiming a reasonable belief of consent has
been recognized in other jurisdictions. The New Jersey
Supreme Court has stated:
If there is evidence to suggest that
the defendant reasonably believed
that ... permission had been given,
the State must demonstrate either
that the defendant did not actually
believe that affirmative permission
had been freely-given or that such
belief was unreasonable under all of
the circumstances.
In the Interest of M.T.S., 129 N.J. 422, 609 A.2d 1266,
1279 (N.J.1992).
Courts in other jurisdictions have likewise held that jury
instructions regarding the defendant's reasonable belief as
to consent are proper. See State v. Smith, 210 Conn. 132,
554 A.2d 713 (Conn.1989) (“We agree with the
California courts that a defendant is entitled to a jury
instruction that a defendant may not be convicted of this
crime if the words or conduct of the complainant under
all the circumstances would justify a reasonable belief
that she had consented.”) See also People v. Mayberry,
15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337
(Cal.1975).
Although the logic of these other cases is persuasive,
we are unable to adopt the principles enunciated in
them because of the binding precedent with which we
8
Com. v. Fischer, 721 A.2d 1111 (1998)

are faced, namely, Williams. In an effort to avoid

application of Williams, appellant directs our attention

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Com. v. Fischer, 721 A.2d 1111 (1998)
to the Subcommittee Notes of the Pennsylvania Criminal
Suggested Standard Jury Instructions. The possible
conflict between Williams and § 304 (Mistake of Fact)
was not lost on the Subcommittee.
Quaere whether Williams is wholly
consistent with Crimes Code
§§ 302(c) and 304(1). In the
Subcommittee's opinion, the courts
should recognize as a defense
a defendant's non-recklessly held,
mistaken belief regarding consent.
The jury ought to be told in
what circumstances a mistaken
belief may preclude a defendant's
forceful conduct from being
forcible compulsion or threat of
forcible compulsion.
Subcommittee Note, Pa. Suggested Standard Crim.
Jury Instructions at 15.3121A.
Appellant's insistence that Williams should be
disregarded in light of the legislature's broader and more
complex definition of forcible compulsion is echoed by
the Subcommittee:
In the opinion of the Subcommittee
there may be cases, especially
now that Rhodes has extended the
definition of force to psychological,
moral and intellectual force, where
a defendant might non-recklessly
or even reasonably, but wrongly,
believe that his words and conduct
do not constitute force or the threat
of force and that a non-resisting
female is consenting. An example
might be “date rape” resulting
from mutual misunderstanding. The
boy does *1118 not intend or
suspect the intimidating potential
of his vigorous wooing. The girl,
misjudging the boys' character,
believes he will become violent if
thwarted; she feigns willingness,
just hours before the incident in question. It is clear
however, that the Williams court's basis for denying
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
even some pleasure. In our
opinion the defendant in such a
case ought not to be convicted of
rape.
Id.
It is clear that the Subcommittee gave extensive
thought to the ever-changing law of sexual assault and
our understanding of sexual behavior in modern times.
We agree with the Subcommittee that the rule in
Williams is inappropriate in the type of date rape case
described above. Changing codes of sexual conduct,
particularly those exhibited on college campuses, may
require that we give greater weight to what is
occurring beneath the overt actions of young men and
women. Recognition of those changes, in the form of
specified jury instructions, strikes us an appropriate
course of action.
[5] Despite appellant's excellent presentation of the
issues, there remain two distinct problems precluding
relief in this case. First is appellant's reliance on the
evolution of our sexual assault laws to avoid the
application of Williams. As is obvious from our discussion
above, the changes in the statute are significant and
have served to extend culpability in rape and IDSI cases
to a variety of new circumstances, including incidents
involving psychological, moral and intellectual force.
This case, however, is not one of the “new” varieties of
sexual assault contemplated by the amended statute. It
does not involve the failure to resist due to a tender age,
as in Rhodes, or the threat of punishment for failure to
comply, as in Mlinarich. Nor is it a situation where
the complainant admits she offered no resistance and the
evidence shows that nothing prevented her escape, as in
Berkowitz. This is a case of a young woman alleging
physical force in a sexual assault and a young man
4
claiming that he reasonably believed he had consent. In
such circumstances, Williams controls.
We are keenly aware of the differences between
Williams and this case. Most notable is the fact that
Williams and his victim never met before the incident
in question. Here, appellant and the victim not only
knew one another, but had engaged in intimate contact
5
1
0
Com. v. Fischer, 721 A.2d 1111 (1998)

the jury instruction was its conclusion that the law

did not require it and, further,

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1
Com. v. Fischer, 721 A.2d 1111 (1998)

that the judiciary had no authority to grant it. Even if we
were to disagree with those conclusions, we are
powerless to alter them.
In any event, distinguishing Williams on the basis of the
parties' previous contacts, and therefore holding that it
should not apply here, is not enough to allow appellant
the relief he seeks. Even if we decide that we are
persuaded by appellant's arguments chronicling the
history of sexual assault law and the Jury Instructions
Subcommittee's views, we face a second barrier. Because
this appeal raises ineffective assistance of counsel, we are
required to find that appellant's trial lawyer made a
mistake. That mistake is the failure to ask the trial court
for an instruction that the Williams case held is
unwarranted. In other words, we would have to find that
counsel's failure to argue for a change in the law
constituted ineffectiveness. This, of course, is not
possible. We simply cannot announce a new
rule of law and then find counsel ineffective for failing to
predict same. Todaro, supra.
Assuming that we have the authority to declare that the
instruction is one to which appellant should be
entitled, we cannot hold that counsel erred in failing to
demand it. The relief appellant seeks represents a
significant departure from the current state of the law.
Despite its compelling nature, it *1119 cannot be the
basis for an ineffective assistance of counsel claim.
Judgment of sentence affirmed.
DEL SOLE, J., concurs in the result.
All Citations
721 A.2d 1111

Footnotes
1 Appellant was acquitted of criminal attempt.
2 It is clear from a reading of the relevant statutes and accompanying case law that the rape and IDSI statutes rely on
the same definitions. See generally 18 Pa.C.S.A §§ 3101; 3121; 3123. See also Commonwealth v. Smolko, 446
Pa.Super.
156, 666 A.2d 672 (Pa.Super.1995) (forcible compulsion for rape and IDSI is identical); Commonwealth v. Poindexter,
435 Pa.Super. 509, 646 A.2d 1211 (Pa.Super.1994) (IDSI addresses forcible acts of anal and oral intercourse), appeal
denied, 540 Pa. 580, 655 A.2d 512 (1995). Therefore, despite the fact that this is an IDSI case, our discussion of rape
laws and cases involving rape convictions is relevant to and probative of the issue before us.
3 Apparently, calls to “overhaul” sexual assault laws came before Berkowitz was handed down, but the actual amendments
were not enacted until after the decision was published. The case itself was a focal point in several legislative
discussions. Theresa A. McNamara, Act 10: Remedying Problems of Pennsylvania's Rape Laws or Revisiting Them?,
10 Dick.L.Rev. 203, 210-14 (1996).
4 We observe that the facts of this case are not the same as those set out in the Subcommittee's “date rape” scenario.
The victim in this case testified that she was physically forced to engage in sex against her will, that she resisted
verbally and physically and that she had to strike appellant in order to leave the room. Appellant characterized the
victim as a sexually experienced woman who initiated oral sex in the first encounter, declined it in the second and
made a false rape claim thereafter.
5 The nature of that contact was disputed by the parties. It is, of course, the jury's task to resolve issues of credibility.

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

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